Children's Hospital 'Allowed' To Continue Research Using System It Developed After Patent Fight

from the bizarro-world dept

Last month, we wrote about the absolutely ridiculous situation, where Children's Hospital of Orange County had to shelve its research into brain diseases for children for three years, because the company StemCells claimed it had a patent on the technique the researchers at the hospital were using. Of course, the hospital researchers had developed the technique entirely independently (potentially before StemCells did), but due to the patent, apparently that didn't matter. The small bit of good news is after three years of stifled research, StemCells and Children's Hospital have worked out an agreement to give the hospital a "license" for free. While this is good news, it's still quite worrisome that we had to deal with three years of stifled research to get to this point where some researchers could use techniques they, themselves, developed.

Even worse, because of the nature of the agreement -- a license from StemCells -- the press gets to erroneously suggest that somehow Children's Hospital had taken something from StemCells. Note the opening sentence of the article above:

Palo Alto biotech company StemCells will allow a children's research hospital to use its patented technology for free, clearing the way for greater study of conditions such as autism, brain cancer and neurological disease.

Remember, this is a technique that the researchers at the hospital came up with on their own, and now the press is saying that some other company "will allow" them to use it? And saying that it's actually using that company's "patented technology," when that's not true at all? The hospital isn't using StemCells' patented technology. Its using its own techniques that it developed.

This is a point that we've raised before. So many reporters contribute to massive misconceptions about patents by writing sentences like the one above. It implies that patent lawsuits really are about one group "copying" an idea or technology from another, and that the patent holder "owns" the technology itself. This is blatantly untrue in most cases.

What a ridiculous world we live in where a hospital researching brain diseases for children has to beg and plead for three years to be "allowed" to use its own technology, and then have the press make it sound like it had copied that technology from someone else.

Larger problem

"So many reporters contribute to massive misconceptions about patents by writing sentences like the one above."

That's true of pretty much every story, though. The problem is really that most reporters are generalists, hoping from desk to desk, rather than specialists who hone their skills in a particular area of expertise.

I love the smell of bias in the morning...

While this is good news, it's still quite worrisome that we had to deal with three years of stifled research to get to this point where some researchers could use techniques they, themselves, developed.

...

Remember, this is a technique that the researchers at the hospital came up with on their own, and now the press is saying that some other company "will allow" them to use it?

Correction: this is a technique that the researchers claim to have developed on their own. I see no evidence that they did so outside of their self-serving admissions.

So many reporters contribute to massive misconceptions about patents by writing sentences like the one above.

Pot, meet Kettle. If you are going to come down on reporters for how they characterize StemCell's patented technology, you should be similarly exacting on how the researchers present their defense.

In the UK the issue seems to be subject to a consultation at present - and the exemption may be made wider - it seems already to be wider than in the US.http://www.out-law.com/page-9244
not sure if the consultation has fed back yet...

There seems to be an assumption made here that whatever the hospital "invented" was in fact the same thing invented by the patent holder. This is, of course, note necessarily true, so references to "independent invention" and asserting that it applies in this situation is more in the nature of conjecture.

There also seems to be an assumption that the patent holder ran around sending "threatening" letters. Having read at least one of the letters this is hardly the case.

There also seems to be the assumption that research came to a halt because researchers were concerned with what these letters had to say. This, to my knowledge, would be an inaccurate statement. The true "villans" in this case are the in-house lawyers who clearly overreacted by placing potential liability "purity" over common sense. Their job is supposed to be how to get the hospital from point A to point B. Giving the impression that the hospital could not even start the journey to point B is simply ridiculous.

Want to blame someone? Try the in-house lawyers, for it was them who said "stop"...with the 3 years being a sure sign that they said "stop" simply as a CYA exercise.

From the original article:
"The hospital attorneys told him to halt his research and stop shipping the cells to dozens of other academic scientists, who also are conducting brain research."

From the second article:
"The company was concerned that the hospital might sell the cells..."

The issue was not about the hospital using a particular technique. The issue was about giving it away to others. StemCells was not patent trolling here, they were/are not after cash. StemCells simply wanted an agreement with the hospital, StemCells wanted to protect their ability to sell their product - during their limited 20 year patent period. I suspect both sides are at fault for taking 3 years to come to an agreement.

Re: I love the smell of bias in the morning...

"you should be similarly exacting on how the researchers present their defense."

You are free to, why don't you?

and if a research wants to conduct research but a patent won't allow him/her to, how does this demonstrate that patents help promote the progress when research would be conducted perfectly fine without patents? What is wrong with the researchers defense?

"Your honor, I want to conduct research but I can't because this patent won't allow me to. I understand that respecting patents and the business interests of big corporations that contribute nothing of value to society other than obtaining a bunch of frivolous and obvious patents despite doing no research before obtaining them is more important than saving human lives, but I don't care about morality and I want to infringe on this persons patent just to save a bunch of human lives. I'm sorry my defense isn't compelling but will you please allow me to infringe on this patent that uses the very same technology I developed and this patent holder stole and patented?"

Patents are literally theft, they deprive others of their rights, the very definition of theft.

Re: I love the smell of bias in the morning...

Where have you looked for your evidence. What evidence have you seen for your claim that they did not. A patent? That is based on who files not who discovered. Present reasoned supporting arguments and then maybe your sarcasm will be more palatable.

Re: Re: I love the smell of bias in the morning...

I have a question: How do we prove that we came up with a scientific discovery on our own, independently of anyone else?
Lab notebooks would be a start. Publications of one's discovery (which research scientists frequently do) would also help.

Re: Re: I love the smell of bias in the morning...

I have a question: How do we prove that we came up with a scientific discovery on our own, independently of anyone else?
Lab notebooks would be a start. Publications of one's discovery (which research scientists frequently do) would also help.

Re: Emphasis on children

Re: I love the smell of bias in the morning...

Sorry, gonna have to unload.

WHO GIVES A SHIT?! The ugly truth is that this patent piss contest is depriving citizens - who GRANT companies these rights in the first place, who do a helluvalotta FUNDING of this research via taxation, to whom they OWE the fruits of that research - this legal bullshitting around deprives us all of potentially lifesaving methods.

It is a violation of the pact that grants patenting in the first place.

The welfare of the citizenry should always override the right of profit, politics, and artificially generated monopoly rights.

Re: I love the smell of bias in the morning...

Actually, if you do some research, they have been doing this form of research for years long before "Stemcell" filed for the patent. Honestly, it simply means "its a he said she said" situation as to who thought of it first.

"This is a point that we've raised before. So many reporters contribute to massive misconceptions about patents by writing sentences like the one above. It implies that patent lawsuits really are about one group "copying" an idea or technology from another, and that the patent holder "owns" the technology itself. This is blatantly untrue in most cases."

What comes to mind in cases like this is Newton -vs- Leibniz, who independantly developed Calculus around the same time. With the modern patent system the person who files first can prevent someone who developed something first from using it. I understand the point, patents slow down progress.

Re: Re: I love the smell of bias in the morning...

You are free to, why don't you?

Did you read my post? That's exactly what I did. My point was that Mike is being hypocritical for accepting the researcher's position out of hand while heavily critiquing the reporter's characterization of StemCell's position.

and if a research wants to conduct research but a patent won't allow him/her to, how does this demonstrate that patents help promote the progress when research would be conducted perfectly fine without patents? What is wrong with the researchers defense?

That is not the researcher's defense. The researcher's defense is "We developed this on our own."

"Your honor, I want to conduct research but I can't because this patent won't allow me to. I understand that respecting patents and the business interests of big corporations that contribute nothing of value to society other than obtaining a bunch of frivolous and obvious patents despite doing no research before obtaining them is more important than saving human lives, but I don't care about morality and I want to infringe on this persons patent just to save a bunch of human lives. I'm sorry my defense isn't compelling but will you please allow me to infringe on this patent that uses the very same technology I developed and this patent holder stole and patented?"

Objection: you're assuming facts not in evidence. Before you start painting StemCell as a boogeyman, perhaps you should actually read up on what they do.

Patents are literally theft, they deprive others of their rights, the very definition of theft.

You keep using the word "theft." I do not think it means what you think it means.

Re: I love the smell of bias in the morning...

"Correction: this is a technique that the researchers claim to have developed on their own. I see no evidence that they did so outside of their self-serving admissions."

No, it is their research. The same thing happened to James Watson, one of the main discoverers of genes. He didn't want a patent for his discovery (he refused), many of the best scientists do not like patents, and others ended up getting gene patents (and when James found out about this he was furious). and what evidence do you need that James Watson was the first to discover the double helix structure of genetic code? What, just because he doesn't have a patent means he didn't discover it? Just because someone runs to the patent office first doesn't mean that they are the one who discovered something. It just means they got to the patent office first.

"The dispute comes down to access to a technique that Schwartz helped develop at the Salk Institute but the institute failed to patent. StemCells did."

The technique was developed at the Salk Institute. What, do you think the entire institute is lying? They just so happened to have the discovery made before the patent was granted because they secretly stole it from this patent troll that didn't do any research of it sown? I bet James Watts didn't really discover genes too, the institute he discovered them in was telling a lie, it was only those who got to the patent office first that discovered them.

Re: Re: I love the smell of bias in the morning...

Where have you looked for your evidence. What evidence have you seen for your claim that they did not. A patent? That is based on who files not who discovered. Present reasoned supporting arguments and then maybe your sarcasm will be more palatable.

I have not made any claims whatsoever, so you can put the strawman down. I'm not taking a position on who's right and who is wrong. I'm merely pointing out the misrepresentation of facts made and the bias held by the author of the article written above.

Re: Re: Re: I love the smell of bias in the morning...

No, I am assuming facts in evidence. One institute sues for no good reason and the other institute conducts research.

"You keep using the word "theft." I do not think it means what you think it means."

Then your definition of it is wrong.

"Before you start painting StemCell as a boogeyman, perhaps you should actually read up on what they do."

They waste tons of money on worthless litigation that adds no value to society and only hinders R&D. I see what they do, that's enough for me. If they were serious about R&D they wouldn't waste their own money (money that can go towards R&D) and everyone elses money (more money that can go towards R&D) suing everyone for no good reason. They are not serious about R&D, they are only serious about being selfish.

Re: Re: I love the smell of bias in the morning...

"The dispute comes down to access to a technique that Schwartz helped develop at the Salk Institute but the institute failed to patent. StemCells did."

The technique was developed at the Salk Institute. What, do you think the entire institute is lying?

In order to avoid liability? I think it's entirely possible. And I think that if the institute had easily provable evidence that it developed the technique first and did not try to keep it as a trade secret, then they would have presented such evidence.

Re: Re: I love the smell of bias in the morning...

and often times different people/entities make the same discoveries during similar times exactly because the prior knowledge and technology necessary to make that discovery begins to exist in different places at the same time. The patent system is retarded, it means that only the person who gets to the patent office first may benefit from the research conducted and conduct further research on their discovery because the patent gives everyone else disincentive to conduct further research.

Re: Re: Re: I love the smell of bias in the morning...

>>
>> Patents are literally theft, they deprive others of
>> their rights, the very definition of theft.
>>
>
> You keep using the word "theft." I do not think it means
> what you think it means.
>

It means EXACTLY what he thinks it means.

Take something that doesn't belong to you and keep it for yourself or give it to someone else.

A patent allows a company to STEAL the product of my own intellect. I can re-invent something in isolation, and still have to pay some company to "license" my own work.

This is an obvious consequence of patent law. There really is no point in trying to deny it. It muddles the real problem/question.

Given the real purpose of patent law, this is important. They are about promoting progress, not defining some sort of new type of property. Patents aren't meant for some individual or corporate payday or to enable bridge trolls.

Patents are meant to improve the state of the art.

Granting a monopoly on what someone else can re-invent in isolation is quite contrary to the goal of progress.

As someone trained in one of the disciplines where patents are currently running amok and causing considerable damage, I PERSONALLY am at risk of having my own intellectual efforts declared the property of some corporation that doesn't deserve the privelege.

With widely available tools and trivial patents, it's not really hard.

The leaders of the that piece of crap company should be beaten to within 1/8 inch of their lives then have to apologize face to face to everyone single person world-wide that even could have benefited from the 3 years of research lost as a result of their greed.
Their should be no patent situations when it comes to research PERIOD!!
The leaders of StemCells should be labled as murderers; for their greed has killed no telling how many.
The company should be liquified, and all returns should go to the Children's Hospital since they actually value human life.

Re: Re: Re: I love the smell of bias in the morning...

I think it's less likely that them and others stole the idea from StemCells's patent. Them and others used the idea because they didn't think it was patented and they didn't think it was patented because those who developed it first refused to get a patent. If they thought it was patented and they were so eager to avoid liability they would have avoided using the technology.

"And I think that if the institute had easily provable evidence that it developed the technique first and did not try to keep it as a trade secret, then they would have presented such evidence."

They probably do have evidence but it's not like our legal system is in any way equitable to begin with and it's not like litigation is cheap regardless.

Re: Re: Re: Re: I love the smell of bias in the morning...

Re: Re: Re: Re: I love the smell of bias in the morning...

"The roots of the conflict go back several years. While at Salk Institute, Schwartz created a new application out of an existing technique: deriving neural stem cells from post-mortem brains, then growing them in culture. At the same time, StemCells was doing similar things. "

Re: Larger problem

Reporters? Where? Go to google news. Do it. Right now. Now punch up any popular news story. You will get many hits, many different URLs. But read them; they are almost word for word exactly the same.

What we have here are an army of copy editors simply ripping a tear sheet (or copying the story to whatever medium, teletypes are so 60's), punching it up where its needed, and then the story is run. There's no journalist hitting the story with raw FACTS. Its just re-told, verbatim, over and over again, in every little "news" outlet. The original journalist colours the story with his or her particular lack of actual knowledge of the particulars of the story and that defect gets copied over and over again. Like an army of dunces.

A Solution

If the patent laws had a few minor changes situations such as these could be avoided. My thoughts:

Medical patents can be used by any doctor to save a life or improve severe disability as long as it is used without any profit to the institution. This may be difficult to control, but possible, and the situation described seems to be what is essentially being done.

Any proven independent development can be used if it was prior to the awarding/filing of the patent. The restriction would be that the non-patent developer could not license the idea or gain any advantage from what the patent provides the holder.

Only patent holders that actively use the patent can hold claim to it. Simply filing a patent that is believed to cover some future development so the developer can be sued would end. Patent trolls would be eliminated.

Re: Re:

Lost reasearch does not mean that anyone died.

Too true, one would need correlative evidence of some kind to accurately say that stifling a research project caused death.

Likewise one should logically have to prove that independent research on a "patented research process" was both stolen and capitalized on to the detriment of the patent holder. -- Only that's not how patent law seems to work.

Therefore, using the same measure of evidence used in patent cases, I can deduce that StemCells is indeed a baby killer.

And on a tangential, every infringing download causes a lost sale, and kills Pikmin.

OK

Corporate America has NO conscience, period. If you asked someone in StemCells they would 'refer' you to someone else who made the decision, or just give you a laundry-list of reasons they were 'forced' into the position of stopping research which benefits children. All the while they would be showing so much grief and concern. Trust me, there is no grief or concern. It's about the money! Plain and simple! It our law makers had a hair-on-their-ass they would and could put a stop to this bullshit. But we all know they don't have that hair...

"Children's Hospital 'Allowed' To Continue Research" - not exactly true. they could have continued to research, but any publication or use of results would have been subject to the patents in play. i dont think that the time to resolve the issue is only because of the patent holder. could it be that the researchers refused to agree to certain terms, or didnt want to share their own findings? once again, there is likely much more to this story, but actually bringing all of that into the discussion would likely make it a less interesting slam of the patent system.

Re: A Solution

The trouble with your active use I think is a bigger problem with the current system in other ways. The default is to assume the patent is valid, and it is usually too expensive to be worthwhile to pursue proving them to be invalid, so illegitimate patents stand unchallenged.

Re: Re: Re: Re: I love the smell of bias in the morning...

You are correct that patent authors should be forced to prove that they didn't copy someone. The law says they must have been inventors.

The Constitution says you have to promote the progress. I think patent authors should prove that a patent given to them with all patent powers will in fact promote progress.

The Constitution also protects my freedom to express myself with the world. This Amendment trumps anything about patent law. Patent authors should have to show how their full rights from patents don't abridge others' First Amendment rights. I'm interested in how any software patent could be used against people generally not reading patents and simply building software full of individual creativity and passing on that information with essentially full rights (open source) to others to run on their computers.

Patent authors have some tough questions to answer and to prove. In particular, I don't really seen how you can reconcile the nonobvious "criteria" with promoting progress, except at most in very few and limited cases.

Re: Re: Re: Re: Re: I love the smell of bias in the morning...

Why do you like to push such nonsense? You implicitly back that a monopoly (and/or tollbooth) from a little bit of "teaching" is something that promotes progress or that is fair to the many that rediscover something (or already had) independently or even with a little help.

Fact is that people work hard to create things in high detail, many times without knowledge of someone else having written down the broad description of these things. Then we can have all of that made illegal (if unconstitutional patent law is assumed to be legal).

Fact is that given a, b, c, d, and e, *many* will infer many things like f and g. Not all can infer these things "first" in order to get the 20 year monopoly. You might be busy, or simply need a little more time. AND throw in that the bar to a patent is *so low*, and you have a real serious stifling vehicle (and/or an unfairly controlled taxing vehicle) in your hands.

Here is a list of 42 items that I'm almost sure could be further developed into patents that would eventually do more than a negligible amount to stifle progress. http://www.feld.com/wp/archives/2010/06/mailing-out-patent-absurdity.html#IDComment79749495 . I came up with this list one after the other within a short time. The point is not to show that they are brilliant, but that no one should be allowed to essentially write down ideas and then keep others from implementing them simply because they wrote them down first (at least as concerns the USPTO). Of course, the other point is that if patents were automatic and $0, a lot more people that today have little credit and leverage for their innovation would get a lot more, potentially, making it almost impossible for any real products to ever be created having gotten full legal clearance.

You want to be called smart, sharp, .. you want to win some award for being first. Fine, but it's stifling and unconstitutional to keep others from being able to express themselves by creating what they want, *especially* when they create things that go far beyond any particular idea or passage that they may or may not have copied.

I'm glad the SCOTUS justices before Bilski recognized easily how stifling it could be to award monopolies on broad ideas. Monopolies, if we want to assume they might be, should be a rare phenomenon.

But before even agreeing to any patents, keep in mind, as suggested by that Patent Absurdity video, that many of our greatest works in art, literature, and science, could have easily been kept from seeing the light of day had patents been enforced. Stepping down a bit, we'd also have a great many wonderful works which contributed much to the economy and social progress that would also have been barred. And if patents were intended to give a helping hand to the small folk to launch expensive production facilities/businesses, then we can improve upon this system quite a bit so as to perhaps achieve that (somewhat inefficient) goal (eg, only allow enforcement against large wealthy entities only and for much shorter than 20 years).

I don't know of any teacher that was an asset to society that got paid anything resembling 20 years of exclusivity.

Re: Re: Re: Re: Re: I love the smell of bias in the morning...

>> Patent rights are based on inventing + teaching.

To the contrary, I know of a fair share of great teachers that would offer no significant support (allow a little breathing room for the open-minded) to someone that would attribute such greedy and short-sighted behavior on the teaching profession. Decent teachers tend to be among the most generous people and those that most want others to pick up a cause and try to take it further.

Re: Re: Re: Re: I love the smell of bias in the morning...

So, you don't accept facts if they don't agree with what you think they should be, and you're too lazy to go look up the evidence yourself, and demand that others do it for you?

At what point did I ever mention what the facts "should be"? Please feel free to show me where I mentioned what the facts should be.

What I don't accept as fact is a self-serving statement unless it can be supported by evidence. You'll have to excuse me if I don't think "Because I said so" is a valid basis for claiming that something is fact. And as for looking for the evidence, why should I? Isn't it the doctor's job to prove his case?